Immigration judge holds deportation of gay immigrant spouse

On behalf of Kurzban Kurzban Tetzeli and Pratt P.A. posted in Family Visas on Friday, March 23, 2012.

U.S. immigration law allows for a variety of family based visas. Spousal visas are available for many international couples. A U.S. citizen can petition for a spousal visa for a husband or wife who is a foreign national. Recently, there has been some confusion over how the family visa program should apply to married couples who are gay.

Federal law in the United States does not recognize same sex marriages under the Defense of Marriage Act. That law has been the subject of challenge. Recently, an immigration judge on the West Coast, who was presiding in a removal proceeding, put the deportation on hold.

The deportation proceeding involved an undocumented immigrant who has lived in this country since he was a boy. The 35-year-old immigrant was legally married to a U.S. citizen under New York law. The gay married couple now lives on the West Coast.

The couple is seeking legal residency for the undocumented immigrant based upon their marriage. Although federal law does not recognize the marriage, the immigration judge put the deportation case on hold last week, pending the outcome of the petition for legal residency. The deportation case was scheduled for a hearing in late October.

The man subject to the deportation proceeding had been pulled over in a routine traffic stop in July. A background check at the time of that stop uncovered the immigrant's legal status. He entered the country as a minor with his parents, who are legal residents and are in the process of applying for U.S. citizenship.

Efforts to repeal DOMA have apparently stalled in Congress, but the law remains under constitutional challenge in U.S. courts. If the 35-year-old immigrant is subsequently deported in further proceedings in immigration court he will be barred from returning to the United States for 10 years, according to a report from CNN.

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